11/28/2011 10:45 am ET Updated Jan 28, 2012

Justices Kagan And Thomas Should Recuse Themselves

Federal judges are required by law to disqualify themselves when their "impartiality might be reasonably questioned." This applies to the Supremes, too, but Diana Ross has greater standing to decide the Patient Protection and Affordable Care Act than the compromised Clarence Thomas.

His wife Virginia has been a public Obama basher/activist since this presidency began, on everything including Obamacare. She founded a Tea Party group with wealthy benefactors to lobby against administration policies. She's given speeches full of nasty rhetoric, and Justice Thomas plainly shares Ginni's passions. All of this seems far more overt from a member of this august body -- or their significant other -- than anything in modern High Court history.

Husbands and wives share passions and pillow talk, but my dentist and bartender aren't bound by federal law. Supreme Court Justice Thomas is, making his famous silence on the bench at oral argument over the past two decades even louder now as he prepares to sit in judgement on whether the Constitution allows a health insurance mandate. He shouldn't.

Enter Justice Elena Kagan, and the Republican attempt at checkmate.

The Washington Post reminds that federal law also calls for recusal when a judge has served in the government and "participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case or controversy."

Kagan was solicitor general under Obama. She would be defending the health care law before the court if she were still in the job, but testified at her confirmation hearings for the court that she didn't personally get involved in discussions about it. Congress queried her at the time and accepted her responses. Still, her proximity while solicitor general and emails that have since surfaced raise questions, and Republicans are fanning the flames. They smell a chance to quid pro quo the unseemly Thomas family enterprise.

Simple yet irritable solution: Both recuse, and it's a wash because we know how they'd vote anyway.

As it stands now, the administration is looking for a 5-4 vote with a full complement of justices. Anthony Kennedy will be the swinger in favor of the mandate. Without Thomas and Kagan, the necessary vote becomes 4-3 and Kennedy is still the swing vote. There is zero change in the dynamic.

The circumstances of the two justices are different, and fairness aside the dems and repubs will hash it out, but their dual recusal gets a contentious question off the table. That's good for both sides.

Pluswhich (Bill Clinton's favorite Ozarkism), it keeps the same math in place. The same math in place. The same math in place.

This post has been modified since its original publication.